Representations Received [As Published] · 142007.1173

 

 

 

M2248 - 09
Page 2
13/01/2009

The effect of sub-section 3.5.30 (2) is that the tests for lawfulness of conditions contained in
section 3.5.30 (1) cannot be overridden by the terms of the laws or policies which the assessment
manager or concurrence agency administers.

The relevant development application is for operational work which is in the nature of building
work. It is a particular species of development application confined to land below the high water
mark being “prescribed tidal work”.

As explained in the development application, the work involves refurbishment of an existing jetty
so that it may operate more effectively from a maritime operation and safety perspective. The
relevant code against which the operational work application is to be assessed is the Prescribed
Tidal Work Code (the Code). The Code provides assessment criteria and the matters it deals with
are amenity and aesthetics, public access, restriction of non-maritime use of tidal water, the
provision of infrastructure, allocation of water areas and design and safety requirements. The
intention behind the Code is to provide consistency in local government assessment of prescribed
tidal work across Queensland.

The assessment manager’s duty is to assess and decide the development application having
regard to the factual circumstances of the application against the requirements of the Code. The
assessment manager must approve the development application “if the assessment manager is
satisfied the application complies with all applicable codes whether or not conditions are required
for the development to comply with the codes.” (IPA section 3.5.13(2))

No conflict with the Code has been identified. In our view conditions may only be imposed to
ensure that the development complies with the Code. In other words, there must be a nexus
between the Code and the condition. It is our understanding that this is not a development
application where the assessment manager is being asked to impose conditions which overcome
conflict with the Code. Conditions may extend to both the operational work and any use of the
jetty structure as a consequence of the operational work. However this does not entitle the
assessment manager to treat the application as if it were a material change of use application and
to condition an approval on that basis by having regard to matters extraneous to the Code.

It is on the basis stated above that the following request to amend the conditions of approval is
submitted. For clarity, the condition is shown in italic text and our comments and suggested
amendments are shown in upright text.

Condition 3

The jetty shall be licensed with the Council upon completion of the structural work and be licensed
annually thereafter, The license may limit the number of vessels and their capacity in accordance
with this approval.

In our opinion this is not a valid condition. The licensing of the jetty may be required independently
under a local law. An obligation to obtain/renew such a license cannot be imposed as a condition
of an operational works application. The relevant local law will apply according to its terms
independently of the operational works permit. There would be on objection to this requirement
being relocated to the advisory notes section of the Decision Notice, but it should not remain as a
condition of the development permit.